State v. Satti , 2 Conn. App. 219 ( 1984 )

The defendant was denied accelerated pretrial rehabilitation which he sought under the provisions of General Statutes 54-56e.¹ He appealed from that denial to the Appellate Session of the Superior Court which dismissed the appeal as not having been taken from a final judgment.² The defendant subsequently entered a plea of nolo contendere,³ and again appeals⁴ from the denial of his application.

The state argues that the denial of an application for accelerated rehabilitation is not reviewable after a plea of nolo contendere and that, even if the denial were reviewable, the trial court, in this case, did not abuse its discretion.

A plea of nolo contendere, while not an express admission of guilt, is tantamount to a finding of guilt. North Carolina v. Alford, 400 U.S. 25, 36 n. 8, 91 S. Ct. 160,27 L. Ed. 2d 162 (1970). Upon entering such a plea, the defendant consents to the judgment of the court, agrees to be punished as though he were guilty and waives certain constitutional rights. State v. Godek,182 Conn. 353, 365 n. 13, 438 A.2d 114 (1980), cert. denied,450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981). Among the constitutional rights waived are the right to a speedy, public trial by an impartial jury, the right to assert the privilege against self-incrimination, and the right to require the state to prove guilt beyond a reasonable doubt. United States v. Broome, 628 F.2d 403,404 (5th Cir. 1980); State v. Battle, 170 Conn. 469,473, 365 A.2d 1100 (1976). The defendant waives all nonjurisdictional defects and all defenses by a plea of nolo contendere. United States v. DePoli, 628 F.2d 779,781 (2d Cir. 1980); Buckley v. Warden, 177 Conn. 538,542, 418 A.2d 913 (1979). After such a plea, the defendant is limited in the claims he may make on appeal. He may assert, for example, that the indictment or information failed to state an offense; United Brotherhood of Carpenters v. United States, 330 U.S. 395, 412,67 S. Ct. 775, 91 L. Ed. 973 (1947); or, in some instances, that the statute under which he was prosecuted is unconstitutional. United States v. Broome, supra, 405; see State v. Eason, 192 Conn. 37, 39-40, 470 A.2d 688 (1984).⁵ A defendant may not raise claims of constitutional violations occurring before his plea,⁶ although he can attack the voluntary or intelligent character of his plea. Myers v. Manson, 192 Conn. 383, 393, 472 A.2d 759 (1984).

Courts are generally in agreement that a plea of nolo contendere or a guilty plea acts as a cutoff point for the assertion on appeal of claims which preceeded [preceded] the plea and which relate to defenses, nonjurisdictional defects or a deprivation of constitutional rights. Buckley v. Warden, supra; note, 89 A.L.R. 2d 540, 592. In accordance with this general decisional rule, the state argues, in essence, that as soon as the defendant entered his plea of nolo contendere, he waived any complaint which he may have had that the court had previously abused its discretion in the denial of his application for accelerated pretrial rehabilitation.

The state also cites General Statutes 54-94a to bolster its argument. That statute provides that a defendant, prior to the commencement of trial, may enter a plea of nolo contendere conditional on the right to take an appeal from a denial of a motion to suppress evidence based on an unreasonable search or seizure or from a denial of a motion to dismiss. The defendant argues that the statute is not all-inclusive and does not bar an appeal to test the denial of an application for accelerated rehabilitation after a plea of nolo contendere. Section 54-94a expands the exceptions to the general rule that a plea of nolo contendere precludes a review on appeal of all but a few specific claims as discussed above. The statute authorizes limited appeals where none would otherwise exist and should, therefore, be strictly construed. State v. Audet, 170 Conn. 337,340, 365 A.2d 1082 (1976).

The defendant cannot appeal from a denial of an application for accelerated rehabilitation prior to trial. State v. Spendolini, 189 Conn. 92, 93, 454 A.2d 720 (1983). His access to the program, however, is not irreparably lost should he be tried and convicted. Id., 97. The Spendolini court cites State v. Lavorgna, 37 Conn. Super. Ct. 767,437 A.2d 131 (1981), for the latter proposition. The Lavorgna court held that after a denial of accelerated rehabilitation and after a trial in which the defendant was found guilty, an appellate court could review the denial, at least to the extent of determining whether the trial court committed error in failing to hear any of the circumstances surrounding the alleged offense before concluding that the crime involved was of a serious nature.⁷

The question posed by the present case is whether the denial of an application for accelerated rehabilitation is appealable in the absence of a trial and conviction after a plea of nolo contendere. Insofar as this record discloses, the defendant's plea was unconditionally made in open court, without reservation.⁸ The cases previously cited make it clear that he waived almost all rights he may have had prior to the entry of his plea. Although the denial of an application for accelerated rehabilitation is not functionally related to guilt or innocence, as is a ruling on the admissibility of evidence, but is, rather, available to one accused of a non-serious crime who will "probably not offend in the future," the denial is not equal to a deprivation of a constitutional right. Accelerated rehabilitation is not a right at all. It is a statutory alternative to the traditional course of prosecution available for some defendants and totally dependent upon the trial court's discretion. Without a specific statutory grant of access to appellate review after a plea of nolo contendere, the defendant has no right to such review.

Since the defendant chose to plead nolo contendere and makes no claim here that his plea was not voluntarily, intelligently and knowingly made, he has lost the right to appeal the denial of his application for accelerated rehabilitation. The question of whether that denial was an abuse of discretion need not be reached.⁹

The appeal is dismissed.

In this opinion the other judges concurred.